Ex Parte Weber et al

Patent Trial and Appeal Board

Aug 13, 2018

12672913 (P.T.A.B. Aug. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/672,913 07/27/2011
74475 7590
Nestec S.A.
Attn: Patent Department
12 Vreeland Road
Florham Park, NJ 07932
08/15/2018
FIRST NAMED INVENTOR
Frank Weber
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
8428-US-PCT 3758
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
08/15/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentdepartment@rd.nestle.com
gary.lobel@us.nestle.com
docketing@dunlapcodding.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK WEBER, SIMON HUTSCHENREUTHER,
HUBERT REINL, THOMAS RADLER, and
MARTINAS KUSLYS
Appeal2017-010547
Application 12/672,913
Technology Center 1700
Before BRADLEY R. GARRIS, ROMULO H. DELMENDO, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-010547
Application 12/672,913
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134 from a rejection2 of claims
1-35, 41, 42, and 45--49. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
The claims are directed to "a process for producing infant food
products and particularly to an aseptic process for producing infant food
products in which each ingredient is processed to the minimum extent
necessary so that distinctive natural colours and natural tastes of the
ingredients are retained after processing." Spec. ,r 1.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A process for producing an infant food product
comprising a protein ingredient and a vegetable ingredient,
wherein the process comprises the steps of:
(a) in a first stage, separately cooking a vegetable
ingredient and a protein ingredient to provide pre-cooked
ingredients, wherein at least one of the vegetable ingredient and
the protein ingredient is subjected to grinding, prior to or while
1 The real party in interest is identified as N estec S .A. Appeal Brief of
March 8, 2017 ("App. Br."), 1.
2 Final Office Action of October 11, 2016 ("Final Act."). In this opinion, we
also refer to the Examiner's Answer of June 14, 2017 ("Ans.") and the Reply
Brief of August 9, 2017 ("Reply Br.").
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Appeal2017-010547
Application 12/672,913
cooking, to reduce the particle size of at least one of the
vegetable ingredient and the protein ingredient,
(b) in a second stage, mixing the pre-cooked ingredients
to form a mixture, and
( c) processing the mixture at a temperature in a range of
from about I30°C to about I40°C for a time in a range of from
about 30 seconds to about 240 seconds to sterilize the product.
App. Br. 19 (Claims Appendix).
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Mower
Eubanks
Kretov
US 2006/0210692 Al Sept. 21, 2006
US 2008/0299276 Al Dec. 4, 2008
RU 2 312 524 C2 June 10, 2007
REJECTIONS
Claims 1-9, 11-14, 16-18, 20, 22-24, 26, 28-34, 41, 42, 45, 46, 48,
and 49 are rejected under 35 U.S.C. § I03(a) as being unpatentable over
Kretov in view of Eubanks and Mower. Final Act. 2. 3
OPINION
In rejecting claim 1, specifically the limitation of "separately cooking
a vegetable ingredient and a protein ingredient to provide pre-cooked
3 The Final Office Action additionally includes rejections of claims 9-31,
35, and 47 based on various additional references. Final Act. 10, 11, 12, 14.
Appellants do not present arguments separate from those for claim 1. See
App. Br. 13-16. These claims therefore stand or fall with claim 1. See id.;
see also 37 C.F.R. § 4I.37(c)(l)(iv) (2013).
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Application 12/672,913
ingredients," the Examiner finds that Kretov describes certain "[t]hermal
pre-treatment of raw meat" (Kretov p. 4) but "is silent as to the separate
thermal processing of the vegetable ingredient" and that Eubanks "provides
motivation for the thermal pre-treatment of various food components prior to
their mixing." Final Act. 3 (citing various portions of Kretov and Eubanks).
Kretov undisputedly describes that the "[t]hermal pre-treatment of raw
meat (blanching) leads to the release of meat extractives that provides
chemical shchazhenie organism." Kretov p. 4; compare App. Br. 7, with
Final Act. 3; compare Ans. 18, with Reply Br. 2. Appellants do not argue
that the claim limitation "cooking" excludes thermal processing such as
blanching. See, e.g., App. Br. 5-11; Reply Br. 2-10. Appellants, however,
argue that the Examiner reversibly erred because Eubanks "require[ s] not
only that the meat and vegetable be cooked separately, but also that the meat
and vegetable be sterilized separately." App. Br. 9 ( emphasis in original).
According to Appellants, a skilled artisan would not have combined the
references due to certain "negative effect" from mixing the ingredients
"before a sterilization step." Id. at 10.
Contrary to Appellants' argument, however, the various passages and
Figures in Eubanks cited in the Appeal Brief do not state that the prior art
process requires the ingredients be sterilized separately in addition to being
cooked separately. See App. Br. 8-9 (citing Eubanks ,r,r 6, 13-15, 23,
Figures 1 & 2); see Reply Br. 2-9. In the cited portions of Eubanks in the
Appeal Brief, paragraph 13 of Eubanks is the only place where "sterilize" is
mentioned - specifically- the passage states: "Thermal processing is
another typical step, which is important to sterilize food products and, thus,
make them shelf stable. Solid inclusions and liquids can also react
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Application 12/672,913
differently to thermal processing, with regards to, for example, taste, texture
and color change." The teaching of Eubanks, when read as a whole, does
not support Appellants' argument regarding the prior art requirement to
sterilize separately in addition to thermally process (i.e., cooking) separately.
See Eubanks ,r,r 13, 18 (describing "a 'hot fill' process, whereby the
ingredients of the salsa are heated to kill any bacteria present. The salsa
containers are then filled with the salsa while it is still hot to kill any bacteria
that may be present inside the salsa containers" as well as an "aseptic
process" where "the packaging material is sterilized separately").
Based on the teachings in Eubanks, we find that Appellants have not
sufficiently shown Eubanks "suggests that the line of development flowing
from the reference's disclosure is unlikely to be productive of the result
sought by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
We further note that claim 1 is an open-ended claim and does not exclude
sterilization at any point in the process. Appellants' arguments that Eubanks
teaches away and that the Examiner engaged in impermissible hindsight are
not supported by evidence in the record and do not identify reversible error
in the Examiner's findings.
DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
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Application 12/672,913
AFFIRMED
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